UNITED STATES v. BARR

March 14, 1985

UNITED STATES OF AMERICA, Plaintiff, against HAROLD BARR, et al., Defendants

The opinion of the court was delivered by: LASKER

LASKER, D.J.

Harold Barr moved to suppress evidence obtained from the Affiliated Answering Service ("Affiliated"). The issued presented is whether the circumstances surrounding the government's acquisition of mail through the use of a grand jury subpoena were such that they constituted a warrantless seizure in violation of the fourth amendment. We hold Barr's fourth amendment rights were not violated.

On June 1, 1984 Harold Barr was arrested for, among other things, conspiracy to violate federal narcotics laws. After his arrest he was incarcerated in the Metropolitan Correctional Center ("MCC") where he remains pending the outcome of his trial.

During the course of an investigation into the suspected narcotics and narcotics-related activities of Barr the government learned that Barr employed Affiliated to receive mail and telephone messages for him. On June 4, 1984 a grand jury subpoena duces tecum was served on Affiliated. The subpoena requested production on June 12, 1984 of mail addressed to "Larry Freeman", an alleged alias for Harold Barr. Rather than bring the mail to the grand jury on that date, Affiliated complied with the subpoena immediately, that is, on June 4th. On June 11, 1984 the government secured a search warrant and opened the mail which had been delivered by Affiliated pursuant to the Subpoena.

Barr argues that the mail should be suppressed because the government impermissibly used a subpoena duces tecum to obtain his mail in the first place, in circumvention of the warrant requirement. The government answers that "the subpoena duces tecum issued to Affiliated on June 1, 1984 was a wholly proper use of the subpoena process."
*fn1"

Although the fourth amendment prohibits the issuance of subpoenas duces tecum which are overbroad, Hale v. Henkel, 201 U.S. 43, 50 L. Ed. 652, 26 S. Ct. 370 (1906), a subpoena which compels production of evidence is generally not considered to be a "seizure" within the meaning of the Constitution, that is, a taking which cannot be undertaken without the authority of a warrant. United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973); accord United States v. Mara, 410 U.S. 19, 35 L. Ed. 2d 99, 93 S. Ct. 774 (1973). In comparing the grand jury subpoena process with fourth amendment seizures the Dionisio Court relied upon the diminished compulsion attendant in grand jury subpoenas as the critical distinguishing factor. United States v. Dionisio, 410 U.S. at 9-10.

The grand jury, as the sole instrument through which felony charges are constitutionally brought, has broad investigative powers. See, e.g., Costello v. United States, 350 U.S. 359, 362, 100 L. Ed. 397, 76 S. Ct. 406 (1956). The power to subpoena witnesses to testify and to compel the production of documents is accepted as indispensable to the grand jury's exercise of its authority. Although "personal sacrifice" is incumbent in the duty of appear before the grand jury, United States v. Dionisio, 410 U.S. at 10 (citations omitted), the obligation to furnish evidence is essential to the administration of justice. Id. Accordingly, the benefits which an individual receives from performing his or her "civic obligation", i.e., a safer society, operate to lessen the compulsory nature of a subpoena. See id. at 9-10.

The second distinction between the compulsion exerted by a subpoena and a seizure lies in the different nature of the two legal processes. Quoting with approval a decision of Judge Friendly, the Dionisio court stated:

[A seizure] is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court. Id. quoting United States v. Doe (Schwartz), 457 F.2d 895, 898 (2d Cir. 1972), [cert. denied, 410 U.S. 941, 93 S. Ct. 1376, 35 L. Ed. 2d 608 (1973)]

Despite the diminished compulsion of the subpoena process, however, a grand jury subpoena is not a "talisman that dissolves all constitutional protections". Id. at 11. Further, "the rule has long been established that a subpeona [subpoena] duces tecum may not be used in such a way as to impinge upon Fourth Amendment rights". United States v. Re, 313 F. Supp. 442, 448 (S.D.N.Y. 1970). The government devotes a substantial part of its brief to the argument that the subpoena duces tecum at issue in this case was not overly broad, an issue Barr does not seriously contest. However, even a subpoena duces tecum which is validly drawn and issued does not give the process server the right to seize the subpoenaed items. Id. citing Mancusi v. De Forte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968); accord In Re Nwamu, 421 F. Supp. 1361, 1366 (S.D.N.Y. 1976). Accordingly, the question before us is whether the agents who obtained Barr's mail from Affiliated overstepped the subpoena's legal boundaries.

As a threshold showing, to invoke the fourth amendment successfully a defendant must demonstrate a reasonable expectation of privacy in the papers subpoenaed. Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (Harlan, J., concurring) (1967); cf. United States v. Miller, 425 U.S. 435, 442, 48 L. Ed. 2d 71, 96 S. Ct. 1619 (1976) ("[w]e must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate 'expectation of privacy' concerning their contents"). For example, a defendant's fourth amendment rights may be implicated where the items obtained are personal documents. Cf. In Re Horowitz, 482 F.2d 72 (2d Cir.), cert. denied, 414 U.S. 867, 38 L. Ed. 2d 86, 94 S. Ct. 64 (1973) (three filing cabinets were subpoenaed by the grand jury investigating business fraud and the trial court quashed the subpoena to the extent that it required production of wills, trust agreements and other personal records). On the other hand, an individual has no expectation of privacy in papers which are corporate records, United States v. Lartey, 716 F.2d 955, 961 (2d Cir. 1983), or records required to be kept by law, id., or, of course, papers in which the person has no possessory or proprietary interest, cf. United States v. Re, 313 F. Supp. at 447 (the Res could not challenge the taking of workpapers which were the property of their accountant).

The government asserts that the mail it obtained from Affiliated was "business and financial correspondence" and "junk mail" and not "personal correspondence." Government's Supplemental Memorandum of Law in Opposition to Harold Barr's Motion to Suppress Mail Addressed to "Larry Freeman", at p. 2 n.* (filed Jan. 3, 1985). However, we do not interpret the decisions which hold that there is no reasonable expectation of privacy in corporate or other public records as precluding an individual's privacy interest in mail which relates to, for instance, his personal financial matters. Barr's personal mail is a type of property in which Barr ordinarily could have had a legitimate privacy expectation.

Beyond the determination of the simple proposition whether the property seized is of a nature which the fourth amendment generally protects, no bright line rule determines when a subpoena infringes upon fourth amendment rights. The evaluation must be made from the facts of each particular case. United States v. Lartey, 716 F.2d at 961. A review of the few relevant cases in this circuit demonstrates that, as in Dionisio, the focus of the inquiry relates to the level of compulsion present when the subpoena duces tecum is served.

&nbsp;In United States v. Lartey, 716 F.2d 955 (2d Cir. 983), the defendant, a pharmacist, was suspected of unlawfully distributing certain prescription drugs. Forthwith subpoenas requiring production of records from the pharmacies out of which the defendant allegedly operated were served after the defendant had been arrested in connection with the crime. Acknowledging that forthwith subpoenas may "hamper the ability of one to contest its validity before a judicial officer: the court nevertheless declined to hold that such subpoenas were per se illegal, Id. at 7, and upheld the subpoena in the case before it. Factors the court considered included the exigent circumstances presented by the substantiated belief that Lartey would attempt to tamper with the documents if warned of the imminent subpoena, the lack of fourth or fifth amendment grounds upon which the defendant could have successfully moved to quash the subpoena and ...

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